Porn Gets "Landmark Decision" on Condoms

Condoms are mandatory for porn production in California, an administrative law judge has ruled.

The AIDS Healthcare Foundation, which has been fighting for laws that explicitly require prophylactic use in adult film, last night called the ruling by a California Division of Occupational Safety and Health (Cal/OSHA) judge a "landmark decision" that affirms "barrier protection" applies specifically to the porn business.

AHF spokesman Ged Kenslea told us that one of the most important aspects of the ruling ...

... is its affirmation that performers are indeed employees due protection under under workplace safety rules. The group has long argued that federal law prohibiting exposure to bloodborne pathogens such as sperm at the workplace applies to California's adult performers.

The industry has said that porn stars are very part-time workers who paid per "scene" as independent contractors.

The ruling by Judge Mary Droyovage wrote that, without condoms, there is "substantial probability that employees would suffer serious exposure resulting in serious physical harm or death if violation occurred."

Kenslea said AHF's stance is that the ruling applies only to condom use and that it does not mandate dental dams, surgical masks, eye protection, gloves and other gear feared by the industry.

The case involved a "bareback" sex tape by Bay Area studio Treasure Island Media. The video featured multiple partners on film, none apparently using condoms. Treasure Island appealed Cal/OSHA's sanctions, leading to the ruling.

The AHF was "a catalyst for" the ruling, Kenslea said, because the case included a complaint from the organization. He said he was surprised the studio appealed.

In other cases, including one involving Larry Flynt's video house, the studios just paid their fines, sometimes about $10,000 worth, and moved on, Kenslea told us. It's a move that had become the norm when producers were faced with citations for failure to use condoms, he said.

Because Treasure Island appealed, however, it allowed the judge to issue what AHF believes is "a precedent-setting ruling" that covers the entire industry, he said.

The industry is waging a court challenge against an L.A. law that requires condoms for productions in most of the county. And it's expecting another round of legislation that would codify condoms in porn in California.

Performers at the AVN Awards. Photo by Nate 'Igor' Smith for LA Weekly

This ruling could make those battles moot, however. AHF president Michael Weinstein said:

Treasure Island has been quite outspoken in its opposition to condom use in the company's films. That is partly why we filed workplace health and safety complaints with Cal/OSHA: to press for the enforcement of existing state and local workplace regulatory guidelines which require the use of condoms in their - and all - adult films produced in California. After Treasure Island took its OSHA case to trial, claiming that the performers in their films were independent contractors and that the section of the regulations regarding Bloodborne Pathogens did not apply to the adult film industry, the court sustained Cal OSHA's citations after testimony and evidence were presented. This ruling is a milestone for workplace safety in California ...

The industry argues that its twice-a-month testing of its performers works. It says consumers don't want to see condom porn.

In the face of this kind of regulation, the business has threatened to move out of its longtime base of L.A., but so far it has been mostly talk.

The industry trade group, Free Speech Coalition, is in the middle of its annual Summit, which is being held in Westwood.

One of the panel discussions, the group states, is about "a steady increase in law enforcement activity in the adult industry from agencies such as the FBI, FTC, OSHA, local police, and DHS."